Judges rule Franken winner; Coleman to appeal

By
PAT DOYLE
Star Tribune

April 15, 2009 — 5:58am

Carlos Gonzalez, Dml - Star Tribune Star TribuneAl Franken with his wife, Frannie, addressed the media in front of his Minneapolis condo on Monday. A three-judge panel ruled in favor of Al Franken in the senate recount.

Three judges soundly rejected Norm Coleman's attempt to reverse Al Franken's lead in the U.S. Senate election late Monday, sweeping away the Republican's claims in a blunt ruling Coleman promised to appeal.

After a trial spanning nearly three months, the judicial panel dismissed Coleman's central argument that the election and its aftermath were fraught with systemic errors that made the results invalid.

"The overwhelming weight of the evidence indicates that the Nov. 4, 2008, election was conducted fairly, impartially and accurately," the panel said in its unanimous decision.

The panel concluded that Franken, a DFLer, "received the highest number of votes legally cast" in the election. Franken emerged from the trial with a 312-vote lead, the court ruled, and "is therefore entitled to receive the certificate of election."

Speaking to reporters outside his downtown Minneapolis condominium, Franken, flanked by his wife, Franni, said he had "no control" over what Coleman does next but said he would urge his opponent not to appeal, which would delay his certification. "I am honored and humbled by this close victory," he said. "And it's long past time we got to work."

In an interview earlier in the day, Coleman said he believes "thousands" of rejected votes should have been counted.

Coleman legal spokesman Ben Ginsberg said the ruling denies many valid votes by applying a stricter standard to determining eligible ballots than local officials applied during the recount.

"This order ignores the reality of what happened in the counties and cities on Election Day in terms of counting the votes," Ginsberg said, asserting that Coleman must appeal to assure that valid votes are counted. Coleman's lawyers have 10 days to file an appeal with the Minnesota Supreme Court.

But experts who read the panel's 68-page ruling say it effectively attacks some of the very arguments that Coleman would use on appeal.

"It is the kind of opinion that is unlikely to be disturbed on appeal by either the Minnesota Supreme Court or the United States Supreme Court," said Richard Hasen, an expert on election law at Loyola Law School in Los Angeles. "The opinion considers the major arguments made by Coleman and rejects them in a detailed and measured way."

Added University of Minnesota political scientist Lawrence Jacobs: "This is judicial speak for 'nothing here,' and it is most definitely aimed at the appeals process. It's a signal that they are supremely unimpressed by the Coleman case."

The office of Senate Majority Leader Harry Reid of Nevada released a statement Monday night praising the judges' decision but signaling that he would not move to seat Franken in advance of Coleman's expected appeal:

"Norm Coleman is entitled to appeal to the Minnesota Supreme Court. If he does so, we look forward to a prompt decision from that court so that Gov. Pawlenty can issue an election certificate and we can finally bring an end to an episode that has left the people of Minnesota without full representation for too long and has cost taxpayers too much money."

Blunt rejection

The judges said Coleman, trailing Franken by 225-votes after the recount, wanted the panel to ignore Minnesota election law and adopt a more lenient standard allowing illegal absentee ballots to be counted.

The panel was blunt in how it dismissed Coleman claims. A cornerstone of his case was the argument that the judges should count absentee ballots they had deemed illegal during the trial because similar ones had been accepted on Election Day and during the recount.

The panel wrote that Coleman's position would "lead to an absurd result. Following [Coleman's] argument to its conclusion, the court would be compelled to conclude that if one county mistakenly allowed felons to vote, then all counties would have to count the votes of felons."

Moreover, the panel said that Coleman failed to show that "alleged errors or irregularities regarding the treatment of absentee ballots affected the outcome of the election."

The panel took aim at some Coleman claims that will likely figure in any appeal to the Minnesota Supreme Court or federal court system. One of those was his argument that widespread problems -- including varying practices by counties in determining which votes to count -- denied many people their right to vote.

"There is no evidence of a systemic problem of disenfranchisement in the state's election system, including in its absentee balloting procedures," the panel wrote.

Bitter battle

The battle over rejected absentee ballots became the centerpiece of the trial because they provided the best chance for Coleman to find votes to overcome the lead that Franken held after the recount.

But that battle became bitter after the judges in February rejected Coleman's bid to count as many as 4,800 absentee ballots. The judges said Minnesota law made absentee voting a privilege and set strict eligibility standards for absentee voting to avoid fraud.

After that ruling, Coleman's lawyers shifted gears and began to attack the legal reasoning of the panel and the practices of state and local elections officials.

The judges in their ruling confronted those arguments head on, defending the integrity of the state's electoral system in the strongest terms at the very end of their ruling.

"The citizens of Minnesota should be proud of their election system," they wrote.

And the judges rejected Coleman claims that Franken netted about 100 votes in Minneapolis after some ballots disappeared and others were counted twice when local officials failed to keep track of damaged original ballots and their duplicates.

"The court did not hear testimony from any precinct election judge that they duplicated damaged ballots and failed to mark the duplicates or the originals," the judges wrote.

Regarding the missing ballots, they wrote: "The record contains no allegation or evidence of fraud or foul play with respect to the missing envelope of ballots." The judges said every indication is that the machine totals from the Minneapolis precinct were accurate.

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